Institute of Cetacean v. Sea Shepard

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INSTITUTE OF CETACEAN RESEARCH, No. 12-35266
a Japanese research foundation;
KYODO SENPAKU KAISHA, LTD., a D.C. No.
Japanese corporation; TOMOYUKI 2:11-cv-02043-
OGAWA, an individual; TOSHIYUKI RAJ
MIURA, an individual,
Plaintiffs-Appellants,
OPINION
v.
SEA SHEPHERD CONSERVATION
SOCIETY, an Oregon nonprofit
corporation; PAUL WATSON, an
individual,
Defendants-Appellees.
On a Motion for Contempt
Argued and Submitted
October 27, 2014—Pasadena, California
Filed December 19, 2014
Before: Alex Kozinski, A. Wallace Tashima, and Milan D.
Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
SUMMARY*
Contempt
The panel held defendant Sea Shepherd Conservation
Society, its founder Paul Watson, and Sea Shepherd’s
volunteer board members in contempt for violating the
panel’s injunction prohibiting Sea Shepherd, Watson, and
“any party acting in concert with them” from physically
attacking or coming within 500 yards of the whaling and
fueling vessels of the Institute of Cetacean Research and
other plaintiffs on the open sea.
Declining to adopt the report and recommendation of the
Appellate Commissioner, issued following a contempt
hearing, the panel held that the defendants violated the
injunction when they adopted a “separation strategy” under
which they ceded control of their “Operation Zero Tolerance”
campaign, designed to thwart the plaintiffs’ whaling activities
in the Southern Ocean, to foreign Sea Shepherd entities.
The panel held Sea Shepherd US in contempt on the basis
that its separation strategy aided and abetted Sea Shepherd
Australia and other Sea Shepherd entities to perform acts that
would have violated the injunction if done by parties bound
by it. In addition, Sea Shepherd US continued to provide
material support to the OZT campaign after the injunction
issued, confident that the entities it assisted would likely
violate the injunction.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 3
The panel held Sea Shepherd US’s volunteer board
members in contempt based on their ratification of the
separation strategy, and their approval of transfers of
ownership of valuable property, for no consideration, to Sea
Shepherd entities participating in OZT.
The panel held Watson in contempt as the Executive
Director of Sea Shepherd US, as well as for personally
violating the injunction by coming within 500 yards of one of
the plaintiffs’ vessels.
The panel held that against Sea Shepherd US and Watson,
the plaintiffs were entitled to recover attorney’s fees and costs
incurred in bringing and prosecuting the contempt
proceedings and to compensation for any actual damages
suffered. The panel re-referred the matter to the Appellate
Commissioner to determine the appropriate amount of
attorney’s fees and costs, as well as compensatory damages
to award, and to determine the liability of the volunteer
directors. The panel stated that the plaintiffs’ requests for
coercive sanctions and an order to compel compliance should
be directed to the district court.
COUNSEL
John F. Neupert (argued), M. Christie Helmer, Sharae M.
Wheeler, Miller Nash LLP, Portland, Oregon; James L.
Phillips, Miller Nash LLP, Seattle, Washington, for Plaintiffs-
Appellants.
Daniel P. Harris, Charles P. Moure, Rebecca Millican, Harris
& Moure, PLLC, Seattle, Washington, for Defendant-
Appellee Sea Shepherd Conservation Society.
4 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Timothy G. Leyh (argued), Michelle Buhler, Charles S.
Jordan, Calfo Harrigan Leyh & Eakes, LLP, Seattle,
Washington, for Defendant-Appellant Paul Watson.
David F. Taylor (argued), Kathleen M. O’Sullivan, Zachary
P. Jones, Perkins Coie, Seattle, Washington, for non-party
respondents Lani Blazier, Marnie Gaede, Bob Talbot, Robert
Wintner, and Ben Zuckerman.
Clare Loebs Davis, Katie Smith Matison, Lane Powell PC,
Seattle, Washington, for non-party respondent Susan
Hartland.
Kristina S. Bennard, Julia D. Woog, Yarmuth Wilsdon PLLC,
Seattle, Washington, for non-party respondent Peter Rieman.
OPINION
M. SMITH, Circuit Judge:
Institute of Cetacean Research (Cetacean), Kyodo
Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki
Miura (collectively, Plaintiffs) filed this contempt proceeding
against Sea Shepherd Conservation Society (Sea Shepherd
US), its founder Paul Watson, its administrative director
Susan Hartland, and six volunteer members of the Sea
Shepherd US board (collectively, Defendants). The Plaintiffs
allege that the Defendants violated our injunction prohibiting
Sea Shepherd US, Watson, and “any party acting in concert
with them” from physically attacking or coming within 500
yards of the Plaintiffs’ whaling and fueling vessels on the
open sea.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 5
After we handed down our injunction, the Defendants
adopted what they called the “separation strategy.” Pursuant
to the strategy, they ceded control of the Operation Zero
Tolerance (OZT) campaign, designed to thwart the Plaintiffs’
whaling activities in the Southern Ocean, to foreign Sea
Shepherd entities. The Defendants knew those entities would
use assets transferred to them by the Defendants in the OZT
campaign, and that there was a “very high risk” the entities
would violate our injunction. It is undisputed that these
foreign entities repeatedly committed acts against the
Plaintiffs’ whaling ships during the OZT campaign that
would have violated the injunction if performed by the
Defendants.
In this opinion, we consider whether the Defendants
violated our injunction when they implemented the
“separation strategy.” The Plaintiffs contend that the strategy
was aimed at evading our injunction and ensuring that the
OZT campaign proceeded unabated, despite the issuance of
the injunction. In support of their contention, the Plaintiffs
point to undisputed evidence that the Defendants provided
substantial assistance to the OZT campaign after our
injunction issued. The Defendants contend, on various
grounds, that they should not be held liable for the acts of
entities they did not control and whose violations they could
not prevent.
Our thorough review of the record in this case, and the
concessions of counsel at oral argument, compel us to hold
Sea Shepherd US, Watson, and Sea Shepherd US’s volunteer
board members in contempt for violating our injunction.
6 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Cetacean is a Japanese research foundation that
has for many years received permits from the Japanese
government authorizing it to take whales for research
purposes. The International Convention for the Regulation of
Whaling, to which the United States, Japan, and 87 other
nations are signatories, authorizes whale hunting when
conducted in compliance with a research permit issued by a
signatory. See Int’l Conv. for the Regulation of Whaling, art.
VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74.
Japan issued such a permit to Cetacean that authorized it to
take whales in the Southern Ocean during the period
December 20, 2012 to March 31, 2013.
For several years, Sea Shepherd US and its founder,
Watson, have opposed Cetacean’s whale hunting efforts in
the Southern Ocean. Sea Shepherd US is organized as an
Oregon nonprofit corporation with tax-exempt status under
section 501(c)(3) of the Internal Revenue Code. It is
governed by an unpaid board of volunteer directors. Several
current and former directors of the organization are
respondents in this contempt proceeding.
In addition to Sea Shepherd US, there exist a number of
foreign Sea Shepherd entities, including those organized and
governed under the laws of Australia, Belgium, France,
Germany, the Netherlands, and the United Kingdom. We
sometimes refer to Sea Shepherd US and the other Sea
Shepherd entities collectively as “Sea Shepherd.”
Since 2004, Sea Shepherd has mounted a yearly campaign
to prevent Cetacean from killing whales in the Southern
Ocean. Sea Shepherd’s tactics have included throwing smoke
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 7
bombs and glass containers of acid at the Plaintiffs’ vessels;
dragging metal-reinforced ropes in the water to damage the
vessels’ propellers and rudders; throwing safety flares with
metal hooks at nets hung from the Plaintiffs’ vessels in the
hope that they will set fire to the vessels; and shining high-
powered lasers at the Plaintiffs’ vessels to annoy the crew.
See Inst. of Cetacean Research v. Sea Shepherd Conservation
Soc’y, 860 F. Supp. 2d 1216, 1223–24 (W.D. Wash. 2012),
rev’d, 725 F.3d 940 (9th Cir. 2013). Sea Shepherd has
piloted its vessels in ways that make collisions with the
Plaintiffs’ vessels highly likely; in fact, collisions have
occurred on several occasions. Id. Hoping to prevent Sea
Shepherd’s dangerous interference with its whaling activities,
the Plaintiffs brought an action for injunctive relief in the
United States District Court for the Western District of
Washington. After the district court denied their request for
a preliminary injunction, 860 F. Supp. 2d 1216, rev’d,
725 F.3d 940, the Plaintiffs appealed. We reversed. Inst. of
Cetacean Research v. Sea Shepherd Conservation Soc’y,
725 F.3d 940 (9th Cir. 2013).
We issued an injunction pending appeal against Sea
Shepherd US and Watson on December 17, 2012. The
injunction provided in relevant part:
Defendants Sea Shepherd Conservation
Society and Paul Watson, and any party acting
in concert with them (collectively
“defendants”), are enjoined from physically
attacking any vessel engaged by Plaintiffs the
Institute of Cetacean Research, Kyodo
Senpaku Kaisha, Ltd., Tomoyuki Ogawa or
Toshiyuki Miura in the Southern Ocean or
any person on any such vessel (collectively
8 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
“plaintiffs”), or from navigating in a manner
that is likely to endanger the safe navigation
of any such vessel. In no event shall
defendants approach plaintiffs any closer than
500 yards when defendants are navigating on
the open sea.
This injunction remains in effect pending further order of
court. Inst. of Cetacean Research, 725 F.3d at 947.
At the time our injunction was handed down, Sea
Shepherd US was organizing and preparing in earnest for
OZT, its ninth annual whale defense campaign against the
Plaintiffs. Prior to the issuance of our injunction, Sea
Shepherd US, as in previous years, had taken the lead
administrative role in preparing for the campaign. It recruited
both volunteer and paid crew, and outfitted and fueled four
vessels for the campaign: the Bob Barker, Steve Irwin, Sam
Simon, and Brigitte Bardot. Sea Shepherd US had already
spent over 2 million dollars on the campaign when our
injunction issued.
Watson received a copy of our injunction on December
18, 2012, the day after it issued. At that time, Watson was in
the Southern Ocean serving as campaign leader, just as he
had in previous years. Over the next several days, Watson
and other members of Sea Shepherd devised a plan that
would come to be known as the “separation strategy.”
Pursuant to the strategy, Sea Shepherd US would turn over
control of OZT and transfer assets it owned to foreign Sea
Shepherd entities, including Sea Shepherd Australia. Sea
Shepherd Australia is an Australian public company limited
by guarantee and registered under the laws of Australia. For
each of the previous whale defense campaigns, Sea Shepherd
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 9
Australia has provided an operations base for the four vessels
as well as logistical support. Watson was a member of the
boards of both Sea Shepherd US and Sea Shepherd Australia
when the injunction issued. As part of the separation
strategy, Watson would step down from the boards of both
entities, and a new OZT campaign leader would assume
Watson’s responsibilities. Watson, however, would remain
on board the Steve Irwin as an “observer” during the
campaign.
The members of Sea Shepherd US’s board learned of the
injunction by email on December 18, 2012. When the
injunction was handed down, the board was composed of
Watson, who was also the paid Executive Director of Sea
Shepherd US, and volunteer members Lani Blazier, Marnie
Gaede, Bob Talbot, Robert Wintner, Ben Zuckerman, and
Peter Rieman, all of whom are respondents in this
proceeding.
Gaede, the board’s vice president, called a telephonic
board meeting for December 20, 2012, during which Sea
Shepherd US’s attorneys discussed the significance of the
injunction and advised the board members on how to respond.
All of the board members were present, along with another
respondent in this proceeding, Susan Hartland, Sea Shepherd
US’s Administrative Director. The board discussed the
separation strategy and agreed to implement it. Shortly after
the board meeting, members of Sea Shepherd US and Sea
Shepherd Australia began working together to facilitate the
transfer of operational control of OZT to Sea Shepherd
Australia. On December 22, 2012, Jeff Hansen, a board
member of Sea Shepherd Australia, emailed Watson and
Hartland regarding plans for Sea Shepherd Australia to “take
10 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
over,” and for Bob Brown, a former Australian senator and
decorated environmentalist, to lead the campaign.
Watson chaired a telephonic board meeting of Sea
Shepherd Australia on December 27, 2012, in which the
board unanimously resolved to assume responsibility for
running OZT. Thereafter, Watson submitted his resignation
from the Sea Shepherd Australia board and Brown became a
member. On December 31, 2012, the Sea Shepherd Australia
board resolved that Brown and Hansen would be the new
leaders of OZT.
Despite its plan to separate from OZT, Sea Shepherd US’s
financial support for the campaign did not end immediately
after the injunction was issued. Sea Shepherd US paid
$163,405 in OZT-related expenses that were invoiced after
the injunction was handed down. The majority of this money
was spent to refuel the Steve Irwin and pay the credit card
expenses of OZT ship captains.
On or about December 27, 2012, several of the Plaintiffs’
whaling ships departed Japan for the Southern Ocean.
Watson informed the Sea Shepherd US board of this
development by email on December 27, 2012. Watson’s
email stated: “All four Sea Shepherd ships and their crew will
be ready to greet the Japanese whalers when they arrive.
They intend to kill whales and Sea Shepherd’s objective is to
see that not a single whale is slain. . . . It appears that the hunt
is on and we intend to hunt whalers.”
On December 28, 2012, Watson formally resigned from
his various roles in Sea Shepherd US and as campaign leader
for OZT, effective December 31, 2012. He surrendered
command of the Steve Irwin to Siddharth Chakravarty, a
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 11
citizen of India, but remained on board the ship. Other Sea
Shepherd US employees participating in OZT also tendered
their resignations to the board. Although Sea Shepherd US
stopped paying independent contractors serving as captains
and crew members of OZT, Watson helped arrange for the
crew to be paid by foreign Sea Shepherd entities.
There is evidence that Watson was not a mere passive
participant in OZT after he resigned his leadership positions.
During the OZT campaign, Watson appeared by phone on a
radio show in March of 2013. His answers to questions posed
during the show indicate that he believed himself to be a
participant in OZT, not just an observer. He said, for
instance, “we’re chasing the Japanese factory ship Nisshin
Maru and keeping it from killing whales.” When asked about
the atmosphere aboard the ship, Watson said, “Oh,
everybody’s very upbeat on our ship because we’ve managed
to make sure they don’t kill many whales this year.”
(emphases added).
Watson was also consulted for guidance on how to
proceed with certain aspects of the campaign. For instance,
on December 28, 2012, Chakravarty emailed a New Zealand
customs official seeking permission to anchor the Brigitte
Bardot off the New Zealand coast. He learned that the ship
would require a hull inspection. Peter Hammarstedt, the
captain of the Bob Barker, emailed Chakravarty that “[t]his
will have to be Paul’s decision. Sid, please check with him
and let us know ASAP.” After being asked by email for his
“decision,” Watson replied “[y]es proceed with this option.”
Watson was consulted for advice about logistical aspects of
the campaign on several other occasions after the injunction
was issued.
12 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
In a December 30, 2012 meeting, the Sea Shepherd US
board accepted Watson’s resignation and elected new board
leadership consisting of Gaede as president, Wintner as vice
president, Blazier as secretary, and Rieman as treasurer. The
board formally voted to sever all financial and other forms of
support to OZT in a series of emails exchanged between
January 8 and 9, 2013. The board also voted to ratify a series
of grants of property for no consideration to Sea Shepherd
entities participating in OZT. Specifically, Sea Shepherd US
granted ownership of the Bob Barker to Sea Shepherd
Netherlands, and gave equipment to both Sea Shepherd
Australia and Sea Shepherd Netherlands. The vessel and the
equipment Sea Shepherd US granted had original purchase
prices totaling over two million dollars.
On January 29, 2013, in violation of our injunction, the
Brigitte Bardot approached within 20.25 yards of the Yushin
Maru 3, one of the Plaintiffs’ ships, while it was navigating
on the open sea. Several additional violations of our
injunction occurred on February 15, 17, 18, 19, 20, 24, 25, 27,
and 28. Most violations involved incursions of the 500-yard
safety perimeter established by the injunction, but collisions
occurred on February 20 and 25 in the course of efforts by
Sea Shepherd to prevent one of the Plaintiffs’ ships from
refueling. Watson was on board the Steve Irwin when these
collisions occurred.
On February 11, 2013, the Plaintiffs filed a motion to find
Sea Shepherd US in contempt and asked us to appoint a
special master to conduct contempt proceedings. The basis
of the motion was the January 29 incident in which the
Brigitte Bardot approached within 500 yards of one of the
Plaintiffs’ vessels. On February 21, 2013, we referred the
contempt motion to the Appellate Commissioner. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 13
Plaintiffs later amended their motion to allege additional acts
of contempt, and to include Watson, the six volunteer
directors, and Hartland as respondents to the contempt
proceedings. The Appellate Commissioner held a contempt
hearing in Seattle from October 28, 2013 to November 6,
2013. The parties stipulated that actions had occurred at sea
that, if performed by enjoined parties, would violate our
injunction, and testimony about those events was limited.
The hearing focused on how Sea Shepherd US, Watson, the
volunteer directors, and Hartland responded to our injunction,
and their relationship to the persons and entities leading OZT
after Sea Shepherd US’s withdrawal from the campaign.
The Appellate Commissioner issued his Report and
Recommendation on January 31, 2014. He recommended we
find that none of the Defendants had committed an act of
contempt, as he believed they had “adopted a ‘separation’
strategy and took reasonable steps to carry out that strategy in
order to guarantee their own compliance with the injunction.”
The Commissioner determined that the Defendants had not
directly violated the injunction and could not be held in
contempt for the actions of the non-parties leading OZT.
The Plaintiffs and the Defendants each filed objections to
the Commissioner’s Report and Recommendation.
JURISDICTION AND STANDARD OF REVIEW
In our February 25, 2013 order, we retained jurisdiction
over “any further appeals or writs” in this case. Inst. of
Cetacean Research, 725 F.3d at 948. We have “inherent
power” to initiate contempt proceedings. See Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795
(1987) (citing Michaelson v. United States ex rel. Chicago,
14 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
St. P., M., & O.R. Co., 266 U.S. 42, 45 (1924)). We also have
statutory authority to punish both civil and criminal contempt
pursuant to 18 U.S.C. § 401.
The parties disagree regarding the standard of review
applicable to the Appellate Commissioner’s findings of fact
in his Report and Recommendation. The Defendants argue
that the Commissioner acted as a special master, and thus that
we should review his findings of fact for clear error. The
Plaintiffs, however, maintain that we should review the
Commissioner’s findings of fact de novo.
We need not resolve which standard of review applies to
the Commissioner’s findings of fact because our decision
rests on grounds the Commissioner incorrectly rejected
because of errors of law. Specifically, the Commissioner
wrongly concluded that the Defendants could not be held
liable for aiding and abetting others to violate the injunction.
The Commissioner also wrongly concluded that the volunteer
directors’ purported good faith reliance on advice of counsel
was relevant to whether they violated the injunction. Even if
clear error review applied, it would still be appropriate to
correct factual findings predicated on a misunderstanding of
the governing rules of law. See Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 501 (1984) (citing
Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982);
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 n.15
(1982)).
DISCUSSION
The Plaintiffs contend that the Defendants violated our
injunction by aiding and abetting non-parties, including Sea
Shepherd Australia, to commit acts prohibited by the
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 15
injunction. The Plaintiffs argue that the purpose of the
“separation strategy” was not to ensure compliance with our
injunction, but to ensure that OZT proceeded unabated. In
addition, the Plaintiffs contend that Watson violated the
injunction by personally coming within 500 yards of one of
the Plaintiffs’ ships.
The Defendants argue that they implemented the
separation strategy in a good faith effort to comply with the
injunction. They further contend that they lacked control
over the other Sea Shepherd entities and cannot be held
accountable for the actions of these entities.
The volunteer board members point to their reliance on
the advice of counsel as proof of their good faith in
responding to the injunction, and argue that even if they
would otherwise be liable for contempt, they are protected
from liability by the Volunteer Protection Act, 42 U.S.C.
§ 14503. Rieman argues that he should not be held in
contempt because he resigned from the Sea Shepherd US
board shortly after learning that a Sea Shepherd vessel had
come within 500 yards of one of the Plaintiffs’ ships.
Hartland, Sea Shepherd US’s Administrative Director, argues
that she should not be held in contempt because she was not
a member of the board and did not vote to ratify the
separation strategy.
We address these arguments in turn.
I. Sea Shepherd US’s Contempt Liability
“Civil contempt . . . consists of a party’s disobedience to
a specific and definite court order by failure to take all
reasonable steps within the party’s power to comply.” In re
16 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d
693, 695 (9th Cir. 1993). A party may also be held liable for
knowingly aiding and abetting another to violate a court
order. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14
(1945) (“defendants may not nullify a decree by carrying out
prohibited acts through aiders and abettors, although they
were not parties to the original proceeding”). “The party
alleging civil contempt must demonstrate that the alleged
contemnor violated the court’s order by ‘clear and convincing
evidence,’ not merely a preponderance of the evidence.”
Dual-Deck, 10 F.3d at 695 (citing Vertex Distrib., Inc. v.
Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir.
1982)).
The Plaintiffs argue that Sea Shepherd US’s separation
strategy aided and abetted Sea Shepherd Australia and other
Sea Shepherd entities to perform acts that would have
violated the injunction if done by parties bound by it. We
agree, and hold Sea Shepherd US in contempt on this basis.
Sea Shepherd US’s separation strategy effectively
nullified our injunction by ensuring that OZT proceeded
unimpeded, in part by using former Sea Shepherd US assets.
Sea Shepherd US ceded control over OZT to Sea Shepherd
Australia and other Sea Shepherd entities it believed to be
beyond the injunction’s reach, knowing these entities were
virtually certain to violate the injunction. At the same time,
Sea Shepherd US continued to provide financial and other
support for OZT after the injunction by, among other things,
transferring for no consideration a vessel and equipment
worth millions of dollars to Sea Shepherd Australia and other
entities.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 17
A. Sea Shepherd US’s Withdrawal from OZT
Sea Shepherd US chose to implement the separation
strategy because it believed that doing so would allow OZT
to proceed. There was clear and convincing evidence that
Sea Shepherd US was highly motivated to see the OZT
campaign completed. Shortly after the injunction issued,
Watson emailed the captains of various Sea Shepherd vessels
and Hartland. He wrote: “The Japanese whalers are coming.
There is no doubt about that. The question is how do we stop
them now? If we back down to the 9th [Circuit] Court, the
whales will die.” The same day, Watson emailed his attorney
a proposed press release stating, in part:
The Sea Shepherd position is clear: Our ships,
officers and crew are 100% committed to
achieving a zero kill quota on whales. This is
Operation Zero Tolerance and the 120 crew
from 26 nations are prepared to risk their lives
to defend endangered and protected whales in
the Southern Ocean Whale Sanctuary.
Both Sea Shepherd US and Sea Shepherd Australia
recognized that the injunction would hinder Sea Shepherd
US’s ability to lead OZT. Shortly after the injunction was
issued, Hansen, a board member of Sea Shepherd Australia,
emailed Watson and Hartland stating: “As the injunction that
has been put in place by the US Federal court impedes
SSCS’s ability to save the lives of whales, we need another
body other than SSCS to step in and take over for whales.”
Sea Shepherd US ceded control of OZT to Sea Shepherd
Australia on the belief that Sea Shepherd Australia was not
bound by the injunction. Shortly after the injunction issued,
18 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Watson wrote a proposal to Sea Shepherd US’s board stating
in part:
The decision by the other organizations to
comply with the injunction rests with the
Board of Directors of the Sea Shepherd
organizations registered under the laws of
their respective nations. The orders of the 9th
U.S. [Circuit] Court cannot possibly restrict
them and this especially so with Sea Shepherd
Australia where the Japanese fleet is seen to
be operating in direct defiance of the
Australian Federal Court and is presently in
contempt of this court ruling.
Sea Shepherd Australia also believed that it was not
bound by the injunction. In the weeks following the issuance
of the injunction, Sea Shepherd Australia board member John
McMullan, an attorney, and Melbourne barrister Debbie
Mortimer, with whom he consulted, concluded that the
injunction did not bind the organization. Both believed that
Australian courts were unlikely to enforce the injunction
because of an Australian federal court order enjoining the
Plaintiffs from conducting whaling operations in the Southern
Ocean Whale Sanctuary. In the early days after the
injunction was handed down, Bob Brown, who would soon
assume leadership over OZT, visited one of the OZT ships to
reassure the crew that the injunction would not impede Sea
Shepherd Australia’s ability to proceed with OZT.
Sea Shepherd US’s board knew it was highly likely that
Sea Shepherd Australia and other entities would commit acts
that violated the injunction during OZT. This was conceded
by counsel at oral argument when he stated that Sea Shepherd
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 19
US board members “knew [the Bob Barker, which the board
granted to Sea Shepherd Netherlands for no consideration,]
would be used in OZT, and there was a very high risk it
would violate the injunction.”
When the injunction issued on December 17, 2012, Sea
Shepherd US was leading OZT with Watson serving as the
campaign leader and captain of the Steve Irwin. Yet, Sea
Shepherd US did not respond to the injunction by attempting
to prevent people and equipment under its control from
participating in the campaign. Watson, as Executive Director
of Sea Shepherd US, did not use his authority to withdraw the
Steve Irwin from OZT after the injunction issued. Instead, he
remained in charge of the campaign and captain of the Steve
Irwin until late December, when he turned the campaign over
to Sea Shepherd Australia. In his testimony before the
Appellate Commissioner, Watson conceded that he could
have remained in control of the OZT vessels after the
injunction and tried to make sure that they complied. Sea
Shepherd US had a number of employees working on OZT
when the injunction issued, including Peter Hammarstedt, the
Director of Marine Operations and captain of the Bob Barker.
Sea Shepherd US did not order these employees to leave the
ships. Nor did it order them to withdraw the ships from the
OZT campaign. It would have been perfectly reasonable for
Sea Shepherd US to do so in order to ensure that these vessels
and employees did not subsequently violate the injunction.
Cf. In re Transamerica Corp., 184 F.2d 319 (9th Cir. 1950)
(bank held in contempt for failing to countermand
instructions to acquire bank branches, even though all
necessary steps had been taken prior to injunction); see also
2 James L. High & Shirley T. High, A Treatise on the Law of
Injunctions 1448 (4th ed. 1905) (“It is the clear duty of one
who is enjoined from the commission of a particular act not
20 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
only to refrain from doing the act in person, but also to
restrain his employees from doing the thing forbidden, and a
mere passive and personal obedience to the order will not
suffice.”).
Sea Shepherd US eventually stopped paying the salaries
of crew members participating in OZT, but many of them,
including Hammarstedt, continued to participate in the OZT
campaign. Sea Shepherd US gave Hammarstedt and two
other former employees participating in OZT three months of
“severance” pay after they resigned. Importantly, after
Watson resigned from his roles with Sea Shepherd US, he
requested that arrangements be made for the crew aboard the
ships to be paid by other Sea Shepherd entities. Rather than
instruct its employees to help prevent OZT, Sea Shepherd US
effectively shifted these employees to its affiliates’ payrolls
to ensure continued participation in a campaign it knew was
very likely to result in violations of the injunction.
In sum, Sea Shepherd US wanted OZT to continue; knew
that the injunction would prevent it from leading the OZT
campaign effectively; believed that Sea Shepherd Australia
was beyond the reach of the injunction; and knew that Sea
Shepherd Australia held the same belief. It also knew that
there was a high risk that other Sea Shepherd entities would
violate the terms of the injunction if OZT proceeded as
planned. Sea Shepherd US’s decision to withdraw from OZT,
relinquishing any ability to take reasonable steps to prevent
other Sea Shepherd entities from violating the injunction,
must be viewed with these background facts in mind. Sea
Shepherd US did not so much withdraw from OZT as turn the
campaign and millions of dollars of assets over to entities it
knew would do what the injunction forbade Sea Shepherd US
and Watson from doing directly.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 21
B. Sea Shepherd US’s Post-Injunction Assistance to
OZT
Despite the ample evidence that Sea Shepherd US
withdrew from OZT to ensure that it proceeded unhindered,
our decision to hold Sea Shepherd US in contempt does not
rest solely on its failure to take steps to prevent violations of
our injunction. Our decision is primarily compelled instead
by the undisputed evidence noted infra that Sea Shepherd US
continued to provide material support to OZT after the
injunction issued, confident that the entities it assisted would
likely violate the injunction.
A party “may not nullify a decree by carrying out
prohibited acts through aiders and abettors, although they
were not parties to the original proceeding.” Regal Knitwear
Co., 324 U.S. at 14. As a result, a party to an injunction who
assists others in performing forbidden conduct may be held
in contempt, even if the court’s order did not explicitly forbid
his specific acts of assistance. See NLRB v. Deena Artware,
Inc., 361 U.S. 398, 413 (1960) (Frankfurter, J., concurring)
(observing that “[e]very affirmative order in equity carries
with it the implicit command to refrain from action designed
to defeat it”); United States v. Shipp, 214 U.S. 386, 422–23
(1909) (holding sheriff in contempt for failing to prevent
lynching and observing that he “in effect aided and abetted
it”); Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir.
1990) (“The law does not permit the instigator of
contemptuous conduct to absolve himself of contempt
liability by leaving the physical performance of the forbidden
conduct to others. As a result, those who have knowledge of
a valid court order and abet others in violating it are subject
to the court’s contempt powers.”); NLRB v. Laborers’ Int’l
Union of N. Am., AFL-CIO, 882 F.2d 949, 954 (5th Cir. 1989)
22 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
(“One need not commit an unlawful act in order to be liable
for conspiring to evade a judgment of a court: it is contempt
to act solely for the purpose of evading a judgment.”).
1. Post-Injunction Payments for OZT Expenses
Sea Shepherd US incurred substantial expenses related to
OZT after the injunction issued. $348,565 of those expenses
were for orders placed before the injunction was issued, but
paid afterwards. Sea Shepherd US took no steps to rescind
the orders, divert delivery to a third party, or charge for their
use. Moreover, other OZT-related expenses were both
ordered and paid for after the injunction issued on December
17, 2012. For instance, an order of $106,830 in fuel for the
Steve Irwin was invoiced on December 31, 2012, paid for by
Sea Shepherd US that day, and delivered in January of 2013.
Between January 1 and 16, 2013, Sea Shepherd US paid
$16,373 in credit card charges of the captains of vessels
involved in OZT. In all, Sea Shepherd US paid $163,405 in
OZT- related expenses that were invoiced and paid for by Sea
Shepherd US after the issuance of the injunction. Sea
Shepherd US and the individual board members confirmed
through their counsel at oral argument the accuracy of the
$163,405 figure.
2. Donations to OZT
Watson helped facilitate donations to OZT after the
injunction issued. On December 28, 2012, Watson wrote an
email to a Sea Shepherd US fundraiser, stating:
You can continue to fund raise for Sea
Shepherd USA but not to ask for funds for
Operation Zero Tolerance. If people wish to
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 23
restrict a donation to Operation Zero
Tolerance they can do so but it will have to be
made out to Sea Shepherd Australia and there
can be no tax receipt.
Rob Holden has a 501(c)(3) organization
called Blue Rage and if need be donations can
be made to Blue Rage and Blue Rage can
send it on toe [sic] Sea Shepherd Australia.
Thus, even though Sea Shepherd US was unable to collect
tax-deductible charitable donations for use in OZT, Watson
proposed routing such donations to OZT through a separate
501(c)(3) nonprofit entity.
3. Asset Grants to OZT for No Consideration
Sea Shepherd US’s most troubling post-injunction support
for OZT came in a series of substantial grants of property it
made to various Sea Shepherd entities participating in the
OZT campaign. In January of 2013, the Sea Shepherd US
board authorized a series of grants to Sea Shepherd Australia
and Sea Shepherd Netherlands. Specifically, Sea Shepherd
US gave equipment aboard the Brigitte Bardot to Sea
Shepherd Australia for no consideration. This equipment had
an original purchase price of more than $175,000. Sea
Shepherd US also gave equipment aboard the Steve Irwin to
Sea Shepherd Netherlands, again for no consideration. This
equipment had an original purchase price of several hundreds
of thousands of dollars. Most significantly, Sea Shepherd US
also transferred ownership of its vessel, the Bob Barker, to
Sea Shepherd Netherlands for no consideration. As noted
earlier, the Bob Barker and the transferred equipment had a
total original purchase price of nearly two million dollars.
24 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
The Brigitte Bardot, Steve Irwin, and Bob Barker all
participated in OZT. Each vessel was involved in at least one
violation of the injunction; the Bob Barker was involved in
several.
The Sea Shepherd US board knew that these items would
be used in OZT when it voted to grant them to Sea Shepherd
Australia and Sea Shepherd Netherlands. The email asking
the board members to vote on the grants stated “[p]lease
consider this grant in conjunction with Operation Zero
Tolerance.” Sea Shepherd US board member Robert Wintner
testified that he understood this email to mean that the
granted items would be used for OZT. And, if this evidence
leaves any doubt, Sea Shepherd US and the individual board
members conceded at oral argument through their counsel
that the board knew that the equipment would be used in
OZT, and that there was a “very high risk” that the Bob
Barker would violate the injunction.
In light of this undisputed evidence, we hold that Sea
Shepherd US violated the injunction by giving others it knew
were highly likely to violate the injunction the means to do
so. The fact that the injunction’s terms did not specifically
forbid Sea Shepherd US’s acts of assistance does not
immunize Sea Shepherd US from liability. “In deciding
whether an injunction has been violated it is proper to observe
the objects for which the relief was granted and to find a
breach of the decree in a violation of the spirit of the
injunction, even though its strict letter may not have been
disregarded.” John B. Stetson Co. v. Stephen L. Stetson Co.,
128 F.2d 981, 983 (2d Cir. 1942); see Prang Co. v. Am.
Crayon Co., 58 F.2d 715 (3d Cir. 1932); Cal. Fruit Growers
Exch. v. Sunkist Drinks, Inc., 25 F. Supp. 401 (S.D.N.Y.
1938); see also Salazar v. Buono, 559 U.S. 700, 762 (2010)
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 25
(Breyer, J., dissenting) (citing Stetson Co., 128 F.2d at 983).
Our objective in issuing the injunction was to stop Sea
Shepherd from attacking the Plaintiffs’ vessels. Sea
Shepherd US thwarted that objective by furnishing other Sea
Shepherd entities with the means to do what it could not after
the issuance of the injunction.
It has long been settled law that a person with notice of an
injunction may be held in contempt for aiding and abetting a
party in violating it. See Peterson v. Highland Music, Inc.,
140 F.3d 1313, 1323–24 (9th Cir. 1998) (citing NLRB v.
Sequoia Dist. Council of Carpenters, 568 F.2d 628, 633 (9th
Cir. 1977)); Laborers’ Int’l Union of N. Am., AFL-CIO,
882 F.2d at 954; Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 674 (3d Cir. 1999). Much of the
applicable case law addresses the issue of when it is fair to
hold non-parties to an injunction liable for aiding and abetting
a party’s violation of the injunction. See, e.g., Regal
Knitwear Co., 324 U.S. at 14; Levin v. Tiber Holding Corp.,
277 F.3d 243, 250–51 (2d Cir. 2002); Goya Foods, Inc. v
Wallack Mgmt. Co., 290 F.3d 63, 75 (1st Cir. 2002);
Highland Music, 140 F.3d at 1323–24; Illinois v. U.S. Dep’t
of Health & Human Servs., 772 F.2d 329, 332 (7th Cir.
1985); Waffenschmidt v. MacKay, 763 F.2d 711, 717 (5th Cir.
1985); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832–33 (2d
Cir. 1930). It is clear to us that if a non-party to an injunction
may be held in contempt for aiding and abetting violations of
an injunction, a party to an injunction may be as well. We
therefore hold that a party may be held in contempt for giving
a non-party the means to violate an injunction, if the party
knows it is highly likely the non-party will use those means
to violate the injunction.
26 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
Under such circumstances, the party giving assistance
need not affirmatively desire to cause a violation of the
injunction; it is enough that the party know a violation is
highly likely to occur. In so ruling, we are guided by
common law rules of fault-based liability. “Tort law
ordinarily imputes to an actor the intention to cause the
natural and probable consequences of his conduct.” DeVoto
v. Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1347 (9th Cir.
1980) (citing Restatement (Second) of Torts § 8A (1965)).
“Intent is not . . . limited to consequences which are desired.
If the actor knows that the consequences are certain, or
substantially certain, to result from his act, and still goes
ahead, he is treated by the law as if he had in fact desired to
produce the result.” Restatement (Second) of Torts § 8A(b)
(1965). We have adopted a similar definition of intent
outside the common law tort context. For instance, we
employed it when we defined the elements of contributory
infringement of copyright in Perfect 10, Inc. v. Amazon.com,
Inc., 508 F.3d 1146, 1170–71 (9th Cir. 2007), where we
observed that “common law principles establish that intent
may be imputed.” See also Metro-Goldwyn-Mayer Studios
Inc. v. Grokster Ltd., 545 U.S. 913, 934–35 (2005) (endorsing
the use of “rules of fault-based liability derived from the
common law” in assessing liability for contributory
infringement). Under these circumstances, we find it
appropriate to impute to Sea Shepherd US an intent to cause
a violation of the injunction, regardless of whether Sea
Shepherd US affirmatively desired that a violation occur.
We also find it relevant that Sea Shepherd US’s acts of
assistance proximately caused violations of the injunction.
We are once again guided by principles derived from
common law rules of fault-based liability. The Supreme
Court recently summarized the principles of proximate
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 27
causation in Paroline v. United States, 134 S. Ct. 1710, 1719
(2014). “As a general matter, to say one event proximately
caused another is a way of making two separate but related
assertions. First, it means the former event caused the latter.
This is known as actual cause or cause in fact.” Id. Second,
it means the former event was “not just any cause, but one
with a sufficient connection to the result.” Id.We begin this portion of our analysis by asking whether
Sea Shepherd US’s assistance actually caused violations of
the injunction. “The concept of actual cause ‘is not a
metaphysical one but an ordinary, matter-of-fact inquiry into
the existence . . . of a causal relation as laypeople would view
it.’” Id. (quoting 4 F. Harper, F. James, & O. Gray, Torts
§ 20.2, p. 100 (3d ed. 2007)). We need not assess whether
Sea Shepherd US’s acts caused each and every violation of
the injunction. At a minimum its transfer of ownership and
control of the Bob Barker to Sea Shepherd Netherlands
caused the violations involving the Bob Barker. The foreign
Sea Shepherd entities could not have used the vessel to
violate the injunction if they did not control it.
We next inquire whether Sea Shepherd US’s conduct had
a “sufficient connection to” violations of the injunction. See
Paroline, 134 S. Ct. at 1719. In applying this “flexible
concept,” id. (internal quotation marks omitted), we are
mindful of its purpose: “A requirement of proximate cause
. . . serves, inter alia, to preclude liability in situations where
the causal link between conduct and result is so attenuated
that the consequence is more aptly described as mere
fortuity.” Id. (citing Exxon Co., U.S.A. v. Sofec, Inc.,
517 U.S. 830, 838–39 (1996)). For this reason, “[p]roximate
cause is often explicated in terms of foreseeability or the
scope of the risk created by the predicate conduct.” Paroline,
28 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
134 S. Ct. at 1719 (citing 1 Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 29, p. 493
(2005)).
We have no trouble finding a sufficient causal connection
between Sea Shepherd US’s intentional conduct and
violations of the injunction. Sea Shepherd US knew that
there was a very high risk that foreign Sea Shepherd entities
would use the Bob Barker to violate the injunction. It was
clearly foreseeable that transferring the ownership and control
of the vessel to Sea Shepherd Netherlands in order that it
participate in OZT would result in violations of our
injunction.
The fact that the foreign Sea Shepherd entities had a more
direct role in causing the violations than Sea Shepherd US
does not negate the causal connection between Sea Shepherd
US’s acts and the violations of our injunction. An event may
have multiple proximate causes. See id. (“Every event has
many causes . . . and only some of them are proximate, as the
law uses that term.”); Sheridan v. United States, 487 U.S.
392, 406 (1988) (Kennedy, J., concurring) (“It is standard tort
doctrine that a reasonably foreseeable injury can arise from
multiple causes, each arising from a breach of a different duty
and each imposing liability accordingly.”); see also Lillie v.
Thompson, 332 U.S. 459, 461–62 (1947) (per curiam). As we
have observed in applying California tort law, “the fact that
the actor’s conduct becomes effective in harm only through
the intervention of new and independent forces for which the
actor is not responsible is of no importance.” Bank of N.Y. v.
Fremont Gen. Corp., 523 F.3d 902, 910 (9th Cir. 2008)
(quoting Tate v. Canonica, 180 Cal. App. 2d 898, 907
(1960)). “[N]o consideration is given to the fact that . . . the
actor’s conduct has created a situation harmless unless acted
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 29
upon by other forces for which the actor is not responsible.”
Tate, 180 Cal. App. 2d at 907 (internal quotation marks
omitted). By analogy, a party who acts knowing that his
conduct is highly likely to cause a violation of an injunction
may not avoid liability simply because another person outside
his immediate control actually carried out the violation.
We are mindful that the contempt power, like other
“inherent powers” of the judiciary, “must be exercised with
restraint and discretion.” See Roadway Express, Inc. v. Piper,
447 U.S. 752, 764–65 (1980) (citing Gompers v. Bucks Stove
& Range Co., 221 U.S. 418, 450–51 (1911); Green v. United
States, 365 U.S. 165, 193–94 (1958) (Black, J., dissenting)).
Nevertheless, “[t]he purpose of contempt proceedings is to
uphold the power of the court,” Bessette v. W.B. Conkey Co.,
194 U.S. 324, 327 (1904), and to ensure that the court’s
vindication of litigants’ rights is not merely symbolic. Our
orders would have little practical force, and would be
rendered essentially meaningless, if we were unable to
prevent parties bound by them from flagrantly and materially
assisting others to do what they themselves are forbidden to
do.
The Defendants argue that to hold them in contempt for
aiding and abetting we must find them “indirectly liable,”
because “[t]he alleged acts of contempt were committed by
third parties.” The Defendants contend that this requires a
clear and convincing showing that they “incited” or
“controlled” the third-party acts of contempt. This argument
is without merit.
While the record amply supports the inference that Sea
Shepherd US, and Watson in particular (discussed infra),
“incited” others to violate the injunction, a showing of
30 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
incitement or control is not required to hold Sea Shepherd US
in contempt. It is not necessary to impute the acts of others
to Sea Shepherd US to hold it in contempt; we hold Sea
Shepherd US in contempt for the acts it committed after the
injunction issued. See Laborers’ Int’l Union of N. Am., AFL-
CIO, 882 F.2d at 954 (“One need not commit an unlawful act
in order to be liable for conspiring to evade a judgment of a
court: it is contempt to act solely for the purpose of evading
a judgment.”); John B. Stetson Co., 128 F.2d at 983 (holding
that courts may “find a breach of the decree in a violation of
the spirit of the injunction, even though its strict letter may
not have been disregarded”). As a party to the injunction, Sea
Shepherd US is liable because it intentionally furnished cash
payments, and a vessel and equipment worth millions of
dollars, to individuals and entities it knew would likely
violate the injunction.
The out-of-circuit cases Sea Shepherd US cites in support
of its incitement and control argument are plainly irrelevant
to the issues presented here. Sea Shepherd US cites a Federal
Circuit patent case, Tegal Corp. v. Tokyo Electron Co., Ltd.,
248 F.3d 1376, 1378 (Fed. Cir. 2001). But Tegal held only
that a party enjoined from “facilitating” infringement of a
patent cannot be held in contempt merely for failing to
prevent another’s infringement, absent an affirmative act of
facilitation. Id. at 1378–80. This holding is not relevant to
our facts, which do involve affirmative acts.
Sea Shepherd US’s citation to National Organization for
Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001), rev’d
on other grounds, 537 U.S. 393 (2003), is also unavailing.
The injunction in Scheidler explicitly prohibited the
defendants from “aiding, abetting, inducing, directing, or
inciting” others to violate the injunction. Id. at 705. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 31
Scheidler defendants argued that the injunction exposed them
to liability for the conduct of persons they did not control, and
whose actions they did not authorize. Id. at 706. The
Seventh Circuit disagreed, finding that “[n]othing in the order
purports to hold the defendants liable for actions they do not
direct, incite, or control.” Id. at 707. Even if Scheidler’s
narrow holding about the specific terms of one injunction
could be construed broadly as a holding about the general law
of contempt for aiding and abetting, and it clearly cannot, the
holding would not apply here. We do not purport to hold any
of the Defendants liable for actions they did not direct, incite,
or control. Rather, we hold them liable only for their own
intentional acts in furtherance of OZT. A party bound by an
injunction may not provide a non-party with the means to
violate it, knowing the non-party will be likely to do so.
Sea Shepherd US also argues that contempt for aiding and
abetting requires a showing that a third-party’s violations
were “for the benefit of, or to assist” Sea Shepherd US. But
the out-of-circuit case Sea Shepherd US cites in support of
this argument is clearly inapposite. See Goya Foods, Inc.,
290 F.3d at 75. Goya Foods addresses when a non-party to
an injunction may be held in contempt for conduct that would
violate the injunction if performed by a party bound by it. Id.
The First Circuit held that, to be liable for civil contempt, a
non-party’s “challenged action must be taken for the benefit
of, or to assist, a party subject to the decree.” Id. This
requirement, like Rule 65’s requirement that a person cannot
be bound by an injunction unless he is in “active concert or
participation with” a party, is animated partly by due process
concerns raised when courts seek to bind a non-party. See
Fed R. Civ. P. 65(d)(2)(C); Max’s Seafood Cafe ex rel. Lou-
Ann, Inc., 176 F.3d at 674. Holding Sea Shepherd US in
contempt for violating an injunction to which it is a party
32 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
raises no analogous due process concerns. Sea Shepherd
US’s liability for intentionally assisting non-parties to violate
an injunction by which it is clearly bound does not depend on
whether the non-parties violated the injunction for Sea
Shepherd US’s benefit, or their own, or for no reason at all.
The Defendants also argue that they should not be held in
contempt because the so-called “separation strategy” was
based on a reasonable and good faith interpretation of the
injunction. We reject this argument.
It is true that we have recognized a narrow “good faith”
exception to the general rule that intent is irrelevant in civil
contempt proceedings. See Vertex, 689 F.2d at 889. We held
in Vertex that “if a defendant’s action appears to be based on
a good faith and reasonable interpretation of (the court’s
order), he should not be held in contempt.” Id. (internal
quotation marks omitted). By its terms, the Vertex exception
only applies where a defendant’s interpretation is
“reasonable.” Parties who act on the unreasonable advice of
counsel risk being held in contempt if their actions violate a
court’s order.
The facts of this case, however, do not require a Vertex
inquiry into the reasonableness of the Defendants’
interpretation of our injunction. The principle announced in
Vertex was based on the well-established rule that a “vague”
order may not be enforced. See id. (citing Int’l
Longshoremen’s Ass’n, Local 1291 v. Phila. Marine Trade
Ass’n, 389 U.S. 64, 76 (1967) (reversing a civil contempt
judgment founded upon a decree too vague to be
understood)). In Vertex, the parties disputed whether the
words “includes” and “incorporating” in the consent
judgment were impermissibly vague. 689 F.2d at 890. The
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 33
case thus involved a “semantic battle” about the meaning of
allegedly vague terms in the language of the judgment. See
id.No such “semantic battle” is at issue here. The meaning
of the text of the injunction is not disputed by any of the
parties. No one contends that the injunction’s text states, in
so many words, that Sea Shepherd US may not donate
millions of dollars of equipment to entities it knows are likely
to violate the injunction. And no one contends that the text
states that Sea Shepherd US may not continue to fund OZT,
knowing that violations of the injunction were likely to occur
if the campaign proceeded unabated. The language of the
injunction itself is not ambiguous. What the Defendants
claim is ambiguous, however, is whether they could avoid
liability by hewing to the narrow letter of the injunction while
simultaneously ignoring its spirit by giving substantial
assistance to OZT. Vertex is not relevant to resolving such an
“ambiguity.”
Even if the Vertex exception were applicable here, we
would find that the Defendants unreasonably resolved the
“ambiguity.” In making this determination, we are guided by
the Supreme Court’s commentary in McComb v. Jacksonville
Paper Co., 336 U.S. 187 (1949). In McComb, the Court
reversed a district court’s decision declining to enforce an
injunction that prohibited a party from violating the Fair
Labor Standards Act. Id. at 194. Both the district court and
the court of appeals found that the alleged contemnor’s
specific conduct did not violate the injunction’s general
prohibition against violations of the FLSA. Id. at 190–91.
Noting that the respondents “acted at their peril” when they
“undertook to make their own determination of what the
decree meant,” id. at 192, the Court reasoned:
34 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
It does not lie in their mouths to say that they
have an immunity from civil contempt
because the plan or scheme which they
adopted was not specifically enjoined. Such
a rule would give tremendous impetus to the
program of experimentation with
disobedience of the law which we condemned
in Maggio v. Zeitz[1] . . . . The instant case is
an excellent illustration of how it could
operate to prevent accountability for persistent
contumacy. Civil contempt is avoided today
by showing that the specific plan adopted by
respondents was not enjoined. Hence a new
decree is entered enjoining that particular
plan. Thereafter the defendants work out a
plan that was not specifically enjoined.
Immunity is once more obtained because the
new plan was not specifically enjoined. And
so a whole series of wrongs is perpetrated and
a decree of enforcement goes for naught.
Id. at 192–93.
To find the Defendants’ self-serving interpretation of their
obligations under our injunction reasonable would be to invite
“experimentation with disobedience.” The schemes available
to those determined to evade injunctions are many and varied,
see, e.g., Deena Artware, Inc., 361 U.S. at 398; Laborers’
Int’l Union of N. Am., AFL-CIO, 882 F.2d at 954; Parker v.
1
333 U.S. 56, 69 (1948) (observing in different context that “[t]he
procedure to enforce a court’s order commanding or forbidding an act
should not be so inconclusive as to foster experimentation with
disobedience”).
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 35
United States, 126 F.2d 370 (1st Cir. 1942), and no injunction
can explicitly prohibit every conceivable plan designed to
defeat it. Though they had every opportunity, the Defendants
did not seek clarification of their obligations. See McComb,
336 U.S. at 192 (noting that the respondents could have
avoided appeal by simply petitioning for “modification,
clarification or construction of the order”). By construing
their obligations narrowly to include only refraining from acts
specifically enumerated in the injunction, and not acts likely
to nullify the injunction, the Defendants assumed the risk that
their attempts at technical compliance would prove wanting.
We accordingly reject the Defendants’ good faith argument,
and hold Sea Shepherd US in civil contempt.
II. Volunteer Board Members
The Plaintiffs have also moved for contempt against Sea
Shepherd US’s volunteer board members based on their
ratification of the separation strategy, and their approval of
transfers of ownership of valuable property, for no
consideration, to Sea Shepherd entities participating in OZT.
At the time the injunction issued, the volunteer board
members were Lani Blazier, Marnie Gaede, Bob Talbot,
Robert Wintner, Ben Zuckerman, and Peter Rieman. Having
found Sea Shepherd US liable for civil contempt, we also
hold the board members just named in civil contempt.
The law is clear that those who control an organization
may be held liable if they fail to take appropriate action to
ensure compliance with an injunction:
A command to the corporation is in effect a
command to those who are officially
responsible for the conduct of its affairs. If
36 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
they, apprised of the writ directed to the
corporation, prevent compliance or fail to take
appropriate action within their power for the
performance of the corporate duty, they, no
less than the corporation itself, are guilty of
disobedience, and may be punished for
contempt.
Wilson v. United States, 221 U.S. 361, 376 (1911). There is
no dispute that the individual board members knew of the
injunction and voted to implement the separation strategy,
including the transfer of property for no consideration to Sea
Shepherd Australia and Sea Shepherd Netherlands.
The Appellate Commissioner made much of the volunteer
directors’ reliance on the advice of counsel, and the
Defendants urge us to do the same. But the Commissioner’s
conclusion that the volunteer directors intended to comply
with the injunction is at odds with Sea Shepherd US’s
subsequent concession at oral argument that the board knew
there was a “very high risk” the vessel and equipment it
provided would be used to violate the injunction. Under the
circumstances, it is simply not credible that the volunteer
directors believed they were complying with the injunction
when they agreed to grant, for no consideration, millions of
dollars of equipment and materials needed to carry out OZT
to entities they believed would be highly likely to use those
materials to violate the injunction.
Moreover, even if we were to assume, arguendo, that the
volunteer directors truly acted in reliance on counsel’s advice,
that reliance is largely irrelevant. There is “no basis in law”
for a “‘good faith’ exception to the requirement of obedience
to a court order.” In re Crystal Palace Gambling Hall, Inc.,
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 37
817 F.2d 1361, 1365 (9th Cir. 1987). A party’s good faith
reliance on the advice of counsel does not excuse the
violation of a court’s order. See Steinert v. United States, 571
F.2d 1105, 1108 (9th Cir. 1978) (holding that “[d]isobedience
of a valid court order does not cease to be willful when done
in good faith reliance on the advice of a tax accountant”);
Eustace v. Lynch, 80 F.2d 652, 656 (9th Cir. 1935) (holding
that the “advice of an attorney is not a defense to an act of
contempt”); see also United States v. Asay, 614 F.2d 655, 661
(9th Cir. 1980) (holding that defiance of summonses was
“willful despite the advice of counsel” (citing Steinert,
571 F.2d at 1108)). As we observed in Steinert, “[t]o hold
otherwise would make stultification of a court order
impermissibly easy. In litigation frequently the client must
assume the risks of his advisor’s errors.” 571 F.2d at 1108.
Accordingly, the volunteer directors may be held liable for
contempt.
A. Peter Rieman
Peter Rieman stands in a somewhat different position than
the other named board members. Rieman resigned from the
board on February 11, 2013, following the first alleged
violation of the injunction on January 29, 2013. Rieman was
concerned that he had no control over the actions of those
involved in OZT and was worried that he faced personal
exposure for subsequent violations of the injunction.
The Appellate Commissioner concluded correctly that
“[i]f SSCS’s actions (and inactions) put it in contempt, then
[Rieman] is as liable as the other Volunteer Directors.” It is
true that Rieman lacked control over Sea Shepherd US after
he resigned in February 2013. But by that time, he had
already voted to ratify and implement the separation strategy,
38 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
and an OZT vessel had already breached the safety perimeter
imposed by our injunction. Rieman’s resignation therefore
does not immunize him from liability for contempt.2
B. Volunteer Protection Act
The volunteer directors argue that the provisions of the
Volunteer Protection Act (VPA), 42 U.S.C. § 14503,
immunize them from a finding of contempt. We reject this
argument, and hold that the VPA does not affect the power of
federal courts to impose civil fines to redress contempt.
Under some circumstances, the VPA immunizes
volunteers from liability for harm caused by actions taken
within the scope of their volunteer responsibilities. The VPA
provides in relevant part:
[N]o volunteer of a nonprofit organization or
governmental entity shall be liable for harm
caused by an act or omission of the volunteer
on behalf of the organization or entity if–
(1) the volunteer was acting within the scope
of the volunteer’s responsibilities in the
nonprofit organization or governmental entity
at the time of the act or omission;
[and] . . .
2
This finding of contempt as to Rieman does not, however, preclude the
taking into account of his early resignation by way of mitigation when
appropriate remedial sanctions are considered under Part V, below.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 39
(3) the harm was not caused by willful or
criminal misconduct, gross negligence,
reckless misconduct, or a conscious, flagrant
indifference to the rights or safety of the
individual harmed by the volunteer . . . .
42 U.S.C. § 14503(a).
The Plaintiffs raise a host of arguments why the volunteer
directors do not qualify for immunity under the VPA. The
Plaintiffs contend that the attorney’s fees they seek are not
“harm” under § 14503(a); that the board members’
misconduct was willful under § 14503(a)(3); and that they did
not act within the scope of their responsibilities under
§ 14503(a)(1) when they ratified the separation strategy. We
need not address these arguments, for we hold that the VPA
does not affect our power to hold those bound by our
injunction in contempt.
We find it highly improbable that when Congress passed
the VPA, it intended to prohibit federal courts from finding
volunteer board members liable for their acts of contempt.3
The text of the VPA does not specifically mention courts’
equity jurisdiction or their contempt powers. Nor does the
VPA’s legislative history provide support for the conclusion
that Congress’s purposes included curbing the judicial power
3
The parties largely focus their arguments on whether the VPA applies
to federal causes of action, in addition to state causes of action. But
whether the VPA applies to federal causes of action is not directly relevant
to whether the VPA circumscribes federal courts’ contempt power, and the
cases cited are inapposite. See Armendarez v. Glendale Youth Ctr., Inc.,
265 F. Supp. 2d 1136, 1140 (D. Ariz. 2003); Nunez v. Duncan, 2004 WL
1274402, at *1 (D. Or. June 9, 2004); Am. Produce, LLC v. Harvest
Sharing, Inc., 2013 WL 1164403, at *3 (D. Colo. Mar. 20, 2013).
40 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
to enforce orders through contempt. The Committee on the
Judiciary’s report observed that “H.R. 911, as amended,
immunizes a volunteer from liability for harm caused by
ordinary negligence.” H.R. Rep. 105-101(I) at 5 (emphasis
added). The committee report also speaks of the “litigation
craze” and “[o]ur ‘sue happy’ culture.” Id. It explains that
the VPA is “intended to remove a significant barrier—the
fear of unreasonable legal liability—to inducing individuals
to volunteer their time to charitable endeavors.” Id.(emphasis added). These references indicate that the VPA’s
purpose was to curb lawsuits against volunteers, not to curb
courts’ contempt power.
The importance of the power of courts to punish for
contempt makes it highly unlikely that Congress would
curtail that power without explicitly indicating its intention.
“[T]he power of courts to punish for contempts is a necessary
and integral part of the independence of the judiciary, and is
absolutely essential to the performance of the duties imposed
on them by law.” Gompers v. Buck’s Stove & Range Co.,
221 U.S. 418, 450 (1911). This power is “inherent in all
courts.” Michaelson, 266 U.S. at 65. We acknowledge that
Congress may limit lower federal courts’ exercise of the
contempt power. See, e.g., Bessette v. W. B. Conkey Co.,
194 U.S. 324 (1904); Ex Parte Robinson, 86 U.S. 505 (1873).
“Nevertheless, ‘we do not lightly assume that Congress has
intended to depart from established principles’ such as the
scope of a court’s inherent power.” Chambers v. NASCO,
Inc., 501 U.S. 32, 47 (1991) (quoting Weinberger v.
Romero–Barcelo, 456 U.S. 305, 313 (1982)); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 631–32 (1962). Absent a
“much clearer expression of purpose,” see Link, 370 U.S. at631–32, we will not assume that Congress intended to limit
our inherent power to punish contempt.
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 41
We accordingly hold that the VPA does not reach federal
courts’ power to find volunteer board members in contempt
of their orders. Accordingly, the VPA does not immunize
Sea Shepherd US’s volunteer board members from liability
for contempt.
III. Watson
In addition to holding Watson in contempt as the
Executive Director of Sea Shepherd US, we hold him in
contempt for personally violating the injunction by coming
within 500 yards of one of the Plaintiffs’ vessels.
Unlike the other individual respondents, Watson was
present in the Southern Ocean aboard the Steve Irwin during
the entire OZT campaign. Watson claimed to believe that he
could stay on the Steve Irwin, acting as an observer, and
remain in compliance with the injunction. Chakravarty, the
captain of the Steve Irwin, assured Watson that the ship
would not approach within 500 yards of the whaling vessels.
The two developed a contingency plan in the event that the
Steve Irwin looked like it might breach the 500-yard safety
perimeter. Under the plan, Chakravarty would transfer
Watson to the Brigitte Bardot prior to any encounter. This
plan proved unworkable in practice. Chakravarty abandoned
the plan to transfer Watson in mid-February when he and the
other captains attempted a blockade to prevent one of the
Plaintiffs’ vessels from refueling. As a result, Watson
personally came within 500 yards of the Plaintiffs’ whaling
vessel while on board the Steve Irwin.
Watson testified that he did not disembark the Steve Irwin
because he believed that he risked detention or extradition if
he did so in Australia or New Zealand, the only two countries
42 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
within 1000 miles of the Steve Irwin’s position. When the
injunction issued, Watson was subject to an INTERPOL red
notice for criminal charges he faced in Japan. But there was
strong evidence that Watson was unlikely to be extradited
from Australia, and that he knew it. Sea Shepherd was very
popular in Australia, and Watson’s Australian attorney had
advised him that the risk of arrest and extradition by Australia
was remote.
We find that Watson failed to take all reasonable steps
within his power to comply with the injunction. A reasonable
person in Watson’s position would not have tried to evade a
warrant for his arrest while also risking being held in
contempt. To hold otherwise would be to condone as
reasonable Watson’s attempt to evade the criminal charges he
was facing. We accordingly hold Watson in civil contempt
for coming within 500 yards of Plaintiffs’ vessels.
IV. Hartland
The Plaintiffs also request that Hartland, Sea Shepherd
US’s Administrative Director, be held in contempt. Hartland
is in a different position than the other individual
respondents. She was not a member of Sea Shepherd US’s
board, and accordingly did not vote to ratify the separation
strategy. As the Appellate Commissioner found, “[t]here is
no evidence that Hartland took any action in response to the
injunction that was not authorized by the SSCS board.” This
alone does not immunize Hartland from contempt, for our
injunction explicitly bound not just Sea Shepherd US and
Watson, but those acting “in concert” with them. However,
unlike the volunteer board members, Hartland could only
have complied with the injunction by resigning from her paid
employment. Under the specific circumstances of this case,
INST. OF CETACEAN RESEARCH V. SEA SHEPHERD 43
we conclude that it would not be equitable to hold Hartland
in contempt.
V. Appropriate Remedial Sanctions
The Plaintiffs request three forms of relief to redress the
Defendants’ contempt: (1) attorney’s fees and costs as
compensation for bringing the Defendants’ acts of contempt
to the attention of the court; (2) bonded, suspended sanctions
in the amount of $2 million or such amount the court deems
appropriate; and (3) an order directing that the Defendants
may purge themselves of contempt by seeking in good faith
to revoke their grants of property to Sea Shepherd entities.
We hold that the Plaintiffs are entitled to recover
attorney’s fees and costs incurred in bringing and prosecuting
these contempt proceedings. “[T]he cost of bringing the
violation to the attention of the court is part of the damages
suffered by the prevailing party and those costs would reduce
any benefits gained by the prevailing party from the court’s
violated order.” Perry v. O’Donnell, 759 F.2d 702, 705 (9th
Cir. 1985). At a minimum, the Plaintiffs shall recover their
fees and costs against Sea Shepherd US and Watson. The
Plaintiffs are also entitled to compensation for any actual
damages suffered and resources (such as fuel and personnel
costs) that were wasted as a result of the Defendants’
contumacious acts interfering with the Plaintiffs’ mission.
We will re-refer this matter to the Appellate Commissioner to
determine the appropriate amount of attorney’s fees and costs
as well as compensatory damages to award. The
Commissioner shall determine whether the volunteer
directors should also be held liable, and the extent to which
each of them should be held liable, jointly and/or severally.
44 INST. OF CETACEAN RESEARCH V. SEA SHEPHERD
The Plaintiffs’ requests for coercive sanctions and an
order to compel compliance should be directed to the district
court. Our opinion of February 25, 2013, as amended May
24, 2013, provided that the preliminary injunction “will
remain in effect until further order of this court.” Inst. of
Cetacean Research, 725 F.3d at 947. However, we issued
our mandate on June 7, 2013, at which time the district court
assumed supervision over the Defendants’ present
compliance with the preliminary injunction. While we retain
jurisdiction to order remedial relief for acts of contempt that
took place prior to the issuance of our mandate, because these
coercive sanctions are forward-looking, we believe that
policing the Defendants’ continuing compliance with the
preliminary injunction is better left to the district court,
subject to our review on appeal. This panel retains
jurisdiction over all appeals in this case.
CONCLUSION
We hold Sea Shepherd Conservation Society, Paul
Watson, Lani Blazier, Marnie Gaede, Bob Talbot, Robert
Wintner, Ben Zuckerman, and Peter Rieman in civil
contempt. We do not hold Susan Hartland in contempt. We
re-refer this matter to the Appellate Commissioner for further
proceedings in a separate order filed contemporaneously.
IT IS SO ORDERED.